New Futility Case: Siner v. Kindred Hospital Indianapolis

The Court of Appeals of Indiana issued a decision that allows a family to proceed with its medical malpractice action alleging that a hospital's unilateral DNR order caused the patient's death. 



Facts

"October 26, 2007, eighty-six-year old Geraldine Siner became a patient at Kindred Hospital. Geraldine suffered from advanced dementia caused by Alzheimer’s disease and as a result could no longer care for herself. Geraldine’s son, John Siner, was designated as her health care representative and had power of attorney."



"Upon Geraldine’s admission to Kindred, and several times thereafter, John informed . . . Geraldine’s attending physician, that Geraldine was to be a ‘full code’ patient. On November 16, 2007, Kindred’s Ethics Committee decided to make Geraldine a No Code/Do Not Resuscitate (“DNR”) patient, meaning that Kindred staff would not attempt to resuscitate her in the event that she went into respiratory or cardiac arrest (otherwise known as “coding”)."



"The Ethics Committee did not receive approval from John or any other family member to change Geraldine’s status in this manner. Geraldine’s health continued to decline over the following two weeks and Kindred declined to keep Geraldine on ‘full code’ status despite her family’s protests."



Expert Testimony

Plaintiff's expert Timothy Pohlman opined both that the hospital was negligent and that this negligence caused Siner's death.



"Kindred’s Ethics Committee recommended over-riding the wishes of the family and instructions of the patient’s medical representative for full treatment, and instituted Do Not Resuscitate (DNR) order, which ruled out such alternative treatments."



"Gerri Siner was also suffering from over-whelming infection, and septic shock at the time of intake. There is no documentation produced for me that indicate SCCM Surviving Sepsis Guidelines, . . . were followed . . . . These guidelines were not followed apparently because the patient was under a DNR order."



"Full damages and suffering that more likely than not resulted from re-prioritization of treatment modalities for Gerri Siner based on her existing ‘DNR’ order that was left in place without full agreement and consent of her Surrogate decision makers . . . ."



Appellate Ruling

The trial court granted summary judgment in favor of Kindred Hospital, finding the family had failed to introduce any evidence on causation.  The appellate court reversed, because Pohlman's testimony does create a disputed fact as to causation.